The Green Bay Mayor’s office is sticking by its contention that departmental spending requests are not subject to the state’s open records law. The Green Bay Press-Gazette reported last week that Assistant City Attorney Joanne Bungert refused the request, saying the requests are drafts and therefore are exempt from the open records law. On Monday Media Trackers made a nearly identical request. On Thursday we received the same response from Bungert that the PG did:
Please be advised that your open records request… wherein you requested “…all City of Green Bay departmental funding requests received by Green Bay Mayor James Schmitt for preparation of his 2018 executive budget to be presented to Green Bay City Council.” , has been denied for the following reason(s): – A “record” as defined in Wis. Stat. §19.32(2), “does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working. The budget proposals are drafts and preliminary computations prepared by the department heads for the Mayor’s use. Accordingly they are drafts as contemplated under Wis. Stat. §19.32(2) as they are prepared by the department head in the name of the person for whom the department head is working. The determination not to release certain records is subject to review by mandamus under Wis. Stat. § 19.37(1) or upon application to the Attorney General or District Attorney.
As Media Trackers reported previously, Tom Kamenick, open government specialist with the Wisconsin Institute for Law and Liberty, disagrees with Bungert’s rationale for refusing the requests:
I think the mayor is misusing the “draft” exception to the open records law. Under 19.32(2), record does not include “drafts, notes, preliminary computations and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working.” This is often referred to as the “personal use” exception – to emphasize that not all drafts and notes are exempt from the law, what is really important is how they are used.
Typically, the exception is used for personal notes or drafts that only one person creates, sees, and uses. So if an employee attends a meeting, jots down some notes, types up a draft memo based on those notes, then comes back to the work a couple days later to write a final memo, neither the notes nor the draft memo would be a “record” (but the final memo would be).
Where it gets a little trickier is the “in the name of a person for whom the originator is working” exception. There’s not good case law directly on point, but there’s a strong Attorney General opinion that says that many different people within a department can work on something for the department head, and all that work would be exempted from disclosure. But when that draft or memo gets circulated outside of the department, it is no longer prepared for “personal use” or for the use of a direct supervisor.
Kamenick says because of that, he is of the opinion that when a department sends a budget request to the mayor, or to another department, even if the budget request is not in final form, that document is subject to the open records law. Kamenick says a counter argument would be that all the draft requests are being prepared for the mayor’s personal use in creating an executive budget proposal, but he told Media Trackers Monday that “I don’t think that flies because the departments aren’t writing their requests for the mayor to then put forward as his own work – the mayor takes the requests and transforms them into something else.”
Several other Wisconsin cities do make departmental budget requests available to the public. Other than claiming the requests are exempt from the open records law. Neither Schmitt nor anyone in his office have given any indication why he might not want the public to see the initial budget requests. Schmitt will use them in forming his executive 2018 budget to be presented to the Green Bay City Council.
Media Trackers was also given no indication as to why it took three days for the city to inform us that it was simply sticking to the same position it took in denying a previous open records request for the same documents.